Why moving out does not mean losing out in domestic abuse divorce


February 28, 2022

Denise Head and Scott Emsden explore some of the misconceptions around what happens if you leave the family home, especially if your reason for getting out is an abusive partner.

We have all read about the increase in incidents of domestic abuse over lockdown. Confined to family units, often with limited personal space or access to interests outside the home, relationships were bound to either thrive or wither. For those in abusive relationships, lockdown was shutting the door and throwing away the key on what for some was already a domestic prison.

Domestic abuse is often a hidden crime. Facing abuse from the very person who promised to love and care for you inevitably leads to a lack of confidence and self-esteem. Those who suffer abuse may not always have the mental and emotional capacity to see it as a crime and something to report to the police often because of their increasing self-doubt.

As a divorce lawyer, helping a client in an abusive relationship can be one of the most challenging scenarios but the good news is the law is improving and recognises the need to protect and help victims. Our courts are investing more in ensuring victims of domestic violence are given much needed support. In particular it is recognised that children should not have to witness violence and abuse in their own homes and there is a duty to support victims and prevent people from being hurt.

On 29th April 2021, the Domestic Abuse Act received royal assent. Among its measures, the act creates a statutory definition of domestic abuse, establishes the office of Domestic Abuse Commissioner, prohibits offenders from cross-examining their victims in person in the family courts, creates a domestic abuse protection notice (DAPN) and domestic abuse protection order (DAPO), provides a statutory basis for the Domestic Violence Disclosure Scheme (Clare’s law) guidance, requires local authorities to grant new secure tenancies to social tenants leaving existing secure tenancies for reasons connected with domestic abuse and places a duty on local authorities to give support to victims of domestic abuse and their children in refuges and safe accommodation.

Control is often a key element of domestic abuse. Those experiencing abuse are often subjected to emotive verbal (blackmail) warnings that nobody will believe them, or that the situation is somehow their fault. There are also the claims, which can sound logical, that leaving the home means you forfeit all rights to the house; or, if you make the abusive partner leave, they can stop contributing to the mortgage. The most chilling threat is however, if you leave, you lose the children.

Be assured that, if you are a victim of abuse, there are legal means of protecting you. One immediate remedy to consider is getting an injunction to stop the abuser contacting the victim or forcing them to leave the house. However, if this feels too much as a first step, be clear that leaving the home does not mean losing rights of ownership.  Importantly, children’s needs are never determined based on who remains living in the house.  It can of course be more complex, and, to avoid the possible charge of abandonment if moving out, you may need to communicate with your abusive spouse which is where we can help to clarify and protect your rights. However, if you feel you or your children are in danger, don’t think twice about contacting the police and contact your local domestic abuse charity to, literally, seek refuge. The law will protect you.

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